Countering the Chill

This article was originally published in Africa in Fact, the journal of Good Governance Africa.

By Micah Reddy
Defamation and insult laws remain on the books in many countries, but for the most part the West has abandoned enforcing these statutes. In much of Africa, however, criminal trials for insult and defamation are still commonplace and continue to have a chilling effect on free expression.
Research by media watchdog the Committee to Protect Journalists (CPJ) “shows that all too often the media are muzzled through the use of laws designed to silence critical voices,” notes Sue Valentine, CPJ’s Africa program coordinator.
Insult laws, a feature of Francophone Africa traceable to an 1881 French law, are designed to shield public officials from disrepute, and silence dissenting voices. Defamation laws differ in that they are not explicitly aimed at protecting those in authority. In theory, any citizen has recourse to defamation law if written (libel) and/or spoken (slander) statements harm someone’s reputation and dignity.
In practice, however, defamation laws are often used to the same ends as insult laws and with a similar effect on free speech in southern Africa. Cases are often brought against the critics of powerful figures, usually when important issues of public interest are at stake, such as high-level corruption. “Criminal libel laws that recognize truth as a defense in effect invite prosecutions for statements of opinion, which by definition cannot be proven,” according to a 2000 report by the World Press Freedom Committee, a group of national and international news organizations. “Thus, such statutes frequently function as insult laws.”
Insult and criminal defamation trials may lead to imprisonment and heavy fines. For instance, Angolan investigative journalist Rafael Marques de Morais was given a six-month suspended jail term in May for defamation after his exposé of corruption, torture, and killing in the country’s diamond fields implicated the country’s top generals and companies.
“It’s sending a message that ‘we can lock you up,’” Mr Marques de Morais said. “‘We can send [you] to jail any time we want.’” The journalist’s latest ordeal was lighter than the one he faced 15 years ago, when he was jailed for 43 days, ordered to pay a $17,000 fine plus costs and given a six-month prison sentence (later suspended) for accusations made against Angola’s president, José Eduardo dos Santos.
However, several recent developments suggest a growing movement against criminalizing free expression. A 2010 African Commission on Human and Peoples’ Rights resolution called on all states to “repeal criminal defamation laws or insult laws which impede freedom of speech.” And in 2014 the African Court on Human and Peoples’ Rights ordered Burkina Faso to review its legislation after ruling that custodial sentences for defamation were disproportionate and excessive financial penalties were unfair.
So far only one African country, Ghana, has fully and unambiguously repealed criminal defamation laws. Other countries have moved in this direction, albeit at a slower pace.
For example, the Zimbabwean Constitutional Court ruled in 2014 that the criminal code’s defamation law violated the constitution. “Freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection,” the court said.
However, this ruling applied only to the previous constitution, which was replaced with a new one in 2013. Meanwhile, arrests for slander and defamation continue because of legal ambiguities, says Jacqueline Chikakano, Zimbabwe legal officer of the Media Institute of Southern Africa.
According to media reports, in the last ten years police have arrested more than 70 people for insulting the president, Robert Mugabe, although not all were charged. For instance, Reuben Gatsi was arrested in May for a remark he allegedly made about Mugabe’s age. Zimbabwe’s new constitution complicates matters by explicitly excluding “malicious injury to a person’s reputation or dignity” from freedom of expression, thereby creating greater space for criminalizing defamation.
In some countries defamation laws remain on the statute books, but judges have come out strongly against criminalizing expressions of dissent.
For example, in September 2015 a Mozambican court acquitted economist Carlos Nuno Castel-Branco and editor Fernando Mbanze of criminal defamation charges. Mbanze had published in his newspaper an open letter that Castel-Branco had posted on his Facebook page. The economist had compared the 2013 political crisis in Mozambique with the “preludes to fascism” in Europe and accused the former president, Armando Guebuza, of surrounding himself “with bootlickers who lie to you every day, who invent false reports, and give advice based on false premises.” However offensive some might find the letter, “it is perfectly acceptable in a democracy,” ruled Judge João Guilherme in Maputo’s district court.
South African courts, though, have upheld criminal defamation laws. In 2014, for example, the High Court acquitted journalist Cecil Motsepe of defaming a judge he claimed was racist. The court ruled that it could not be proven that Motsepe intended to cause harm. But the court nevertheless echoed a previous Supreme Court of Appeal decision: “Even though the defamation crime undoubtedly limits the right to freedom of expression, such limitation is reasonable and justified in an open and democratic society.”
However, as in most Western countries, criminal defamation is rarely used to silence critics in South Africa. It helps that the country’s press is governed by an effective system of independent co-regulation in the form of the Press Council, which consists of representatives of the press and the public, as well as judges. “The standard approach if there’s been a front page story that is inaccurate and defamatory is to order a front page apology,” says media lawyer Dario Milo. “There have been very prominent front-page apologies in the last few years where the media get it wrong and are ordered to apologize by the ombudsman,” Milo adds. “A prominent and prompt apology mitigates any damages claim substantially, so it’s an incentive to the media where they get it wrong.”
Effective self-regulatory or independent co-regulatory mechanisms for the media and recourse to fair civil claims that do not have a seriously chilling effect on free expression are increasingly seen as acceptable safeguards to individuals’ reputations.
Some within South Africa’s ruling alliance have called for tighter control of the media—for statutory media regulation and the imposition of insult laws to protect the president. Yet, in a surprise move, Jeff Radebe, minister in the presidency, stated in September 2015 that the ruling party would “spearhead legislation through parliament to eliminate criminal defamation from our common law.”
This reflects the growing recognition of insult and criminal defamation laws as anachronistic and incompatible with democracy. The end of these laws could soon follow, at least in South Africa.



Micah Reddy is a South African media activist with the Right2Know Campaign. A former managing editor at the Yemen Times, he has worked in the Middle East as a freelance journalist and editor. He holds a Masters in African Studies from Oxford University and is a co-founder of Sound Africa Podcast.
[Photo courtesy of Wikimedia Commons]

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